London Borough of Enfield (19 013 915)

Category : Transport and highways > Other

Decision : Upheld

Decision date : 15 Dec 2020

The Ombudsman's final decision:

Summary: Mr X complained that the Council’s contractors wrongly removed and impounded two untaxed cars he had parked in residents’ parking bays on a private housing estate. We found the Council and its contractors gave Mr X incorrect information when he first made enquiries but it was not fault to remove the cars. The Council’s contractors have since returned the cars to Mr X and written off all the fees and charges. The Council has apologised to Mr X for giving him wrong information.

The complaint

  1. Mr X complained that the Council’s contractors wrongly removed two untaxed cars he owned from residents’ parking bays on a private housing estate.
  2. The cars were kept in the contractors’ car pound from October 2019 until November 2020. Mr X refused to pay the release fees, and the daily storage fees, because he says the cars had been wrongly removed.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have spoken to Mr X. I have considered the information and records provided by the Council and its contractors. The Council sent us legal advice in confidence.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The relevant law and the DVLA Code of Practice

  1. Section 29(1) of the Vehicle Excise and Registration Act 1994 makes it an offence for someone to use or keep an untaxed vehicle. There is an exemption for vehicles not kept on the public highway where the owner has a SORN.
  2. Regulation 9 of the Vehicle Excise Duty (Immobilisation, Removal and Disposal of Vehicles) Regulations 1997 (as amended in 2008) says an authorised person may remove an untaxed vehicle which is stationary “in any relevant place” other than a place that is specifically exempted in a Schedule to the 1994 Act.
  3. A place is exempt if it is:
    • within the curtilage of, or in the vicinity of, a dwelling-house, mobile home, or houseboat and which is normally enjoyed with it; or
    • any place within the curtilage of, or in the vicinity of, a building consisting entirely (apart from common parts) of two or more dwellings and which is normally enjoyed only by the occupiers of one or more of those dwellings.”
  4. There is no requirement in the Act or regulations to give the registered keeper of the vehicle notice before it is removed.
  5. Councils may enter into an agreement with the DVLA to remove untaxed vehicles from public roads. Enfield Council has such an agreement. Contractors carry out enforcement on its behalf. The DVLA has published a Code of Practice which reminds councils that they are accountable for enforcement action by their contractors.
  6. Enfield Council’s contract documents say the contractors must adhere to the DVLA Code of Practice when they immobilise and remove vehicles. The Code reinforces the need to act in accordance with the regulations. It says if a vehicle is removed in error, it should be released immediately without charge.
  7. The Code also has an enforcement flowchart which sets out in sequence the matters contractors must consider before they remove an untaxed vehicle. Where the vehicle is not parked on a public road, but on land associated with a dwelling, including parking bays and parking spaces, it says enforcement action should not proceed. It says this applies regardless of who maintains the land and whether the parking bays or spaces are allocated to specific dwellings.
  8. The Council’s contractors record where the vehicle was parked and take photographs before taking it to the car pound. The vehicle owner must pay a release fee, and a daily storage fee, before the vehicle can be returned.

The removal of Mr X’s cars

  1. Mr X bought two cars in late October 2019. He says he intended to repair and sell them to raise funds for a charity he supports. He says he had not taxed the cars because he was waiting for logbooks in order to arrange MOT tests. He says he then intended to apply to the Driver Vehicle & Licensing Authority (DVLA) for a statutory off road notification (SORN).
  2. Mr X parked both cars off-road in residents’ parking bays on a private housing estate. Neither car had a SORN. Mr X says he had permission from residents on the estate to park his cars in the bays.
  3. The Council’s contractors identified the cars were untaxed from DVLA records. They removed them in late October 2019 and took them to a car pound. The contractors say enforcement officers should contact the Council before they remove a vehicle from a private or off road location to check they can take enforcement action. In this case, the enforcement officer did not check because he believed the cars were parked on the public highway.
  4. At first Mr X thought the cars had been stolen. The police told him the cars were in the contractors’ car pound.
  5. Mr X complained to the contractors in late October. He claimed they had removed the cars unlawfully because they were not parked on the public highway. He asked them to release the cars without charge.
  6. On 12 November a claims handler who works for the contractors replied to Mr X’s complaint. She said the cars could only be released if he paid the charges because they were parked on a public highway without road tax.
  7. Mr X also complained to the Council. On 15 November an officer said the Council could not investigate his complaint because the contractors were working for DVLA when they removed the vehicles. It said this was not a Council matter and advised Mr X to contact the contractors.
  8. Mr X persisted with his complaint to the Council. In early December 2019 the Council informed a Councillor that the contractors had acted lawfully under the 1997 regulations. It said they were entitled to remove an untaxed vehicle from any place except for land set aside for use by residents of that place. It said the landowner had confirmed the bays where Mr X parked the cars were reserved for use by residents. As Mr X was not a resident of the estate, he was not entitled to use them.
  9. The Council maintains that its contractors acted lawfully when they removed the vehicles. During this investigation, it sent us advice given by its Legal Service and a Counsel’s opinion which supports that view.
  10. The Council’s contractors provided a statement for this investigation. It said it had offered to return the vehicles to the same location free of charge following Mr X’s complaint. However the Council told them not to do so because Mr X is not a resident on the estate and has no right to use the parking bays.
  11. While the cars remained in the car pound, Mr X incurred a daily storage fee of £21 and an additional release fee of £200 for each vehicle. By early September 2020 the total fees were £13,042.
  12. During our investigation, the Council and its contractors offered to waive the fees and return the vehicles to a suitable location where they can be kept legally. However the Council did not accept there was fault in the decision to remove the vehicles. The contractors returned the cars to Mr X on 12 November.

Analysis

  1. Mr X parked both cars in residents’ parking bays on private land on a housing estate. They were not on a public road. The key issue is whether the 1997 regulations (as amended) permitted the Council’s contractors to remove the vehicles from this location.
  2. At the time of removal, the contractors wrongly believed the cars were on the public highway. However the Council’s legal advice is that the regulations permit the removal of vehicles from residents’ parking bays on private land if they are not owned by a resident. So it considers Mr X’s cars were lawfully removed from this location.
  3. We do not find fault with the Council’s interpretation of the regulations. The regulations gave it powers to remove Mr X’s untaxed vehicles from private residents’ parking bays. We have seen no evidence Mr X had permission to park in the bays.
  4. However, the Council and the contractors gave Mr X incorrect information when they first responded to his enquiries. The contractors wrongly told him the cars were parked on the public highway when it replied to his complaint on 12 November. The Council misinformed Mr X on 15 November 2019 when it said the contractors were acting on behalf of the DVLA. Within a few days, the contractors informed Mr X they were acting on behalf of the Council and not the DVLA and the Council later confirmed this. Although these errors were corrected reasonably quickly, it was nevertheless fault to give Mr X incorrect information on two occasions.
  5. The contractors have now written off the charges and returned the cars to an off road location where Mr X can legally keep them.

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Agreed action

  1. The Council has apologised to Mr X for giving him incorrect information when he first contacted the contractors and the Council. It has confirmed that all the charges have been written off.
  2. Within one month of this decision it will work with the contractors to review their operating procedures and remind enforcement officers to follow the stages in the DVLA Code flowchart before deciding to remove vehicles.

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Final decision

  1. We have completed the investigation and did not find fault in the decision to remove the vehicles. But the Council and the contractors gave Mr X incorrect information in November 2019. That fault caused Mr X some inconvenience and frustration. The Council’s decision to instruct the contractors to return the vehicles and write off all the charges provides a substantial remedy for that limited injustice.

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Investigator's decision on behalf of the Ombudsman

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